Software Patent Violations – Very Tricky Issue Abroad – But Not Valid in India

Last Updated On December 30th 2011

United States International Trade Commission (US ITC) has asked HTC to change a software feature in its Android phone as it has ruled that the software feature violates an Apple patent! HTC has agreed to comply and is going to run its proposed software feature changes through the United States International Trade Commission. Wow! While software patents getting enforced may not be new to current techies, for a guy like me who is getting back into the tech. thick of things after nearly a decade, this has been a kind of eye-opener. Having some idea now about legal issues of software I think this is another significant learning for me. Hardware patents are different – IFIRC that was being enforced decades ago. Please note this a software patent issue – not a software copyright issue. HTC/Android/Google seems to have implemented a software feature using their own code which is similar to Apple’s patented software feature!

Here is an article from NY Times on it, “U.S. Backs Apple in Patent Ruling That Hits Google”: http://www.nytimes.com/2011/12/20/technology/apple-wins-partial-victory-on-patent-claim-over-android-features.html):

The patent violation is about the feature that allows the user to finger-tap once on a phone number in an e-mail or text message to call the number. Apparently the resolution to the patent violation is that HTC will not provide a list of options to save the number, dial it or SMS it; instead it will allow only dialling the number.

If HTC does not change the feature then it will not be able to sell its phones in the US after 19th April 2012!

A friend informed me that it seems that Apple asserted 4 (or maybe 5) patents as violated in its US ITC complaint. The US ITC disagreed with almost all of them, except for two claims on one of the patents (typically each patent has dozens of claims). That doesn’t take away from the fact that the US ITC held that HTC’s implementation violated Apple’s patent.

Also it seems that this is not the first software patent ruling against a big corp. I am a newbie to this area and this was the first, as a newbie, that I am seeing on the big stage.

During my industry career days, I dimly recall that I had heard/read about the LZW and RSA patent issues. But that was not relevant for most software developers as it concerned very specific algorithms (http://en.wikipedia.org/wiki/Lempel%E2%80%93Ziv%E2%80%93Welch, http://en.wikipedia.org/wiki/RSA_%28algorithm%29). The LZW patent issue got famous as Unisys tried to make money from its LZW patent which is used in gif images. See http://www.jamesshuggins.com/h/tek1/burn_all_gifs.htm. RSA gave up its patent in 2000: http://www.rsa.com/rsalabs/node.asp?id=2322.

Then (the late 80’s and 90’s) the far bigger issues were copyright & monopolistic trading practices. I do not recall a single case in my software career involving customers and/or software teams in the US, Europe, Japan, Korea, Middle-East as well as Far-East for system software/application software involving product development or customized software development where anybody had to worry about or was charged with a software patent infringement for the software they developed!

Times have changed now. Though, based on my reading today, it is quite a grey area. The OSS licensing area seems to be far better as it is quite well defined in comparison.

HTC announced the same day that that have a workaround (http://www.bgr.com/2011/12/19/htc-responds-to-itc-ruling-says-it-has-a-solution-ready-to-address-apple-patent-violations/):

Overall I think this software patent thing especially when used for minor algorithms & UI features is quite scary. I mean, somebody/some company may not even know of the existence of a patent regarding some small software feature (UI or processing) and could write his/her/its own code and sell the software. And then it could get hit with a patent violation claim! Did I get this right?

Assuming I got it right, what does the poor software developer do? First search the software patents database to know which UI features and algorithms/processing are patented; then do his software in such a way that it does not violate a patent; and then go a little further to file a patent for his/her software so that nobody creates a future patent that can invalidate his software. Maybe I got some of the stuff a little mixed up but overall I think I have a case here about software patents making life very difficult for software creators.

A few days later:
I was informed that I did get the danger of violating software patents right. It seems to be so bad that the chances of violating someone’s patent while writing software is quite high!

Here is Paul Graham on software patents: http://www.paulgraham.com/softwarepatents.html

The only practical approach seems to be to just go ahead and write software without bothering about patents. Maybe care is taken to avoid infringing on known software patents – but no effort is made to discover & study existing software patents related to one’s software – perhaps that is an impossible task. Later if some patent infringement claim is made the company’s legal team will handle it – it is not the bother of the software developer team.

Perhaps in some cases the developers feel it is best to not even read up on patents. As then the danger of any patent violation being considered willful infringement will be higher. Willful infringement will attract a heavier punishment/penalty than ignorant infringement. This really is a complex and very unsatisfactory situation.

Here is an interesting blog on “bad” software patents: http://badpatents.blogspot.com/2011_06_01_archive.html

Here is Prof. Donald Knuth’s letter in 1994 against software patents to the US Commissioner of Patents & Trademarks: http://www.pluto.it/files/meeting1999/atti/no-patents/brevetti/docs/knuth_letter_en.html

Arguments against software patents in India, Feb. 2010: http://www.cis-india.org/a2k/blog/arguments-against-software-patents

Interestingly, Indian law-makers (Parliament) have rejected software patents. So for software developed for Indian users the software developers can blissfully ignore software patents. Wonderful! So raviiyer.org does not need to worry about software patent violations. That’s a very happy conclusion of this exploration of mine on software patent violations.


Additional Info.


A friend wrote: Awareness of software patents was relatively high in embedded/real time systems community.  Especially in telecom and wireless software development in the late ’90s.  The issue did not get hot in applications software, until business process patents became legal in some countries.  With that, if you developed inventory management software that could email your supplier to automatically refill the bins, you had to worry not to violate somebody else’s patents. Searching on Google for “inventory management software patent” gives a large number of hits!

Here are some links for your future reference:

  1. For a very detailed coverage of patent law related topics, see: http://www.patentlyo.com/
  2. For a pro-FOSS/GPL/Linux coverage of legal issues and probably the most popular blog/forum in that genre, see: http://www.groklaw.net.
  3. For a contrary view, supporting patents, but more focused on video game related IP issues: http://www.patentarcade.com/
  4. For an unmoderated democratic view: http://slashdot.org/.
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